Barely Legally

Confessions of a Moot Court Bailiff

Malpractice Imperfect

Aaron Carroll, writing for the New York Times’s Upshot Blog, on some interesting aspects of medical malpractice. Studies and surveys have shown for decades that there are certain specific things some doctors do which gets them sued for malpractice. Carroll runs through the literature and, in a departure for “old media,” actually links to the studies in question. Basically, doctors get sued for malpractice when they don’t spend enough time talking to their patients, not when they practice medicine poorly.

This isn’t new, we all learned that in law school, and I think we also learned that legal malpractice lawsuits happen the same way. Talk to your clients, make them feel like you’re listening to them, and you’ll do okay. No kidding, right?

Here’s the great part:

Physicians and patients don’t communicate well even about malpractice. A study published in 1989 surveyed patients who sued physicians as well as physicians who had or had not been sued. Almost all (97 percent) of the patients reported negligence as the reason for their malpractice action. Fewer, about half, of non-sued physicians thought negligence was the cause of malpractice suits in general.

Only 10 percent of sued physicians, however, thought negligence was the reason for claims against them. While only a fifth of patients reported financial compensation as their motive for suing, more than 80 percent of all physicians thought this was the reason patients filed suits.

Virtually every patient who files a malpractice suit thinks they’ve been neglected. Doctors who haven’t been sued think malpractice suits are caused by doctors’ negligence half the time. But 90% of the physicians who have been sued come up with some reason besides their own negligence. They think that medical malpractice suits are a shameless cash grab.

The fact that there’s some cognitive dissonance at play here isn’t surprising. It’s the depths to which this misunderstanding goes: we’re approaching questions of epistemological possibilities here. Is it possible for physicians and plaintiffs to understand one another? And, like, what if what I see when I’m looking at the color orange isn’t what you see at all, man? Whoa.

Actually, the one thing that most everyone agrees on, whether they be plaintiff or defendant, is that communication is key to preventing these kinds of problems in the first place. Why is why, in one recent study about people visiting emergency rooms for relatively harmless chest pains:

The median estimate of whether a patient might die at home of a heart attack was 80 percent in patients and 10 percent in physicians.

Whoops.